New SCC decision on economic rights in the family

On January 25th, 2013, the Supreme Court of Canada ruled that not extending spousal support and the division of property upon relationship breakdown to common-law couples, or de facto spouses, is constitutional.

The case of Quebec (Attorney General)v. A, otherwise known as “Eric” v. “Lola”, involves a heterosexual couple in Quebec who lived together for 7 years but never married. They met in Brazil when Lola was a 17-year-old student and Eric was a 32-year-old wealthy Quebecois business owner. Lola told the court that she had asked Eric to marry her several times. He maintained that, while he might consider it, he didn’t believe in the institution of marriage. Her first language was neither English nor French. The couple had three kids, she mostly did not work outside the home, and he supported the family financially.

When they separated in 2002 Lola made claims, spousal support and the division of marital property, among other things. She also challenged the constitutionality of several Quebec Civil Code (QCC) provisions that specified that spouses had to be legally married, or in a registered civil union, to be entitled to spousal support or the division of property. She claimed that excluding unmarried partnerships from spousal support, and division of family assets provisions amounted to discrimination based on “marital status” and a violation of the right to equality under Section 15 of the Charter of Rights and Freedoms. She argued that prohibiting her from claiming spousal support and the division of marital assets subjected her to differential and discriminatory treatment because she wasn’t married, despite the fact that she lived in a long-term interdependent relationship.

The case took more than 10 years to reach and be decided on at the Supreme Court of Canada. Ultimately, a narrow majority of the Supreme Court ruled that the exclusion of common-law couples from spousal support and marital asset provisions was not a violation of the Charter of Rights and Freedoms.

The Chief Justice found that Quebec had a justifiable rationale for distinguishing between married and non-married couples, stating that the Quebec regime maximizes choice and autonomy for couples with respect to family assets and support upon the breakdown of relationships. The ruling also establishes that couples in Quebec can actively, choose to be held financially responsible for each other by getting married or by entering into formal civil unions.

Many women across the country remain unaware of how their marital status affects their rights to spousal support and property division. Currently, Quebec is the only province that requires couples to be married or in a civil union to qualify for spousal support at separation. However, it is not the only province to exclude common-law couples from the division of family property post-relationship. Other provinces and territories that extend the right to division of property to common-law couples include Manitoba, Saskatchewan, Northwest Territories, Nunavut, and BC as of March 18th 2013.

To see more about the differences between rights and responsibilities of common-law and married couples in Ontario, see A Women’s Guide to Women, Relationships and the Law.